Forget privacy, we need to spy more

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Pretty much everyone agrees that our human-spy capacity is missing in action. The chances that a CIA agent will be in the same cave as Osama bin Laden when the next 9/11 is being plotted are vanishingly small. The chances that our porous border security or transportation security will stop the next gang of Islamist cutthroats aren’t much better. It’s simply impossible to protect every inviting target in a continent-sized nation of almost 300 million people.

When it comes to the war on terror, the biggest advantage we have comes from our electronic wizardry. The National Security Agency has its share of problems, but it has long been the best in the business at intercepting and deciphering enemy communications. Until now. If civil liberties agitators, grandstanding politicians and self-righteous newspaper editorialists have their way, we will have to give up our most potent line of defense because of largely hypothetical concerns about privacy violations.

Assorted critics, taking a break from castigating the Bush administration for doing too little to protect the homeland, are now castigating it for doing too much. How dare the NSA receive without benefit of a court order telephone logs from AT&T, BellSouth and Verizon? Even though the records were anonymous and did not include the contents of any calls (Verizon and BellSouth have now denied offering any information at all), hyperventilating worrywarts fret that fascism has descended.

Qwest is supposed to be the hero of this drama for having, in USA Today’s words, “the integrity to resist government pressure.” That is not a compliment often paid to a company that has been accused of massive fraud and whose former chief executive is charged with 42 counts of insider trading. Maybe Qwest should celebrate by launching an advertising campaign touting itself as the preferred telecom provider of Al Qaeda.

All this concern with privacy would be touching if it weren’t so selective. With a few keystrokes, Google will display anything posted by or about you. A few more keystrokes can in all probability uncover the date of your birth, your address and telephone number and every place you have lived, along with satellite photos of the houses and how much you paid for them, any court actions you have been involved in and much, much more.

It is only a little more work to obtain your full credit history and Social Security number. Or details of your shopping, traveling and Web-browsing habits. Such information is routinely gathered and sold by myriad marketing outfits. So it’s OK to violate your privacy to sell you something—but not to protect you from being blown up.

How far do the civil-liberties absolutists want to take their logic? Will troops in Afghanistan and Iraq soon have to read Miranda warnings to captured suspects and apply for a court’s permission before searching a terrorist safe house? Or do such niceties stop at our borders, thereby giving Al Qaeda and its ilk the freedom to operate unhindered only in the U.S.?

Much of this silliness can be traced to the 1978 Foreign Intelligence Surveillance Act, which for the first time made judges the overseers of our spymasters. This was an understandable reaction to such abuses as the FBI’s wiretapping of the Rev. Martin Luther King Jr. But FISA is a luxury we can no longer afford. Were it not for FISA’s high standard of “probable cause,” the FBI could have examined Zacarias Moussaoui’s laptop in August 2001 and perhaps saved 3,000 lives. The Patriot Act scaled back some FISA provisions, such as the “wall” between intelligence and law enforcement agents, but enough remain intact to raise unnecessary questions about the legality of some much-needed homeland security measures.

This archaic law should be euthanized. Replace it with legislation that gives the president permission to order any surveillance deemed necessary, subject to only one proviso: If it is later determined that an intelligence-gathering operation was not ordered for legitimate national security objectives—if, for instance, it was designed to gather dirt on political opponents—then the culprits would be punished with lengthy prison sentences. Given that our intelligence bureaucracy leaks like a sinking ship, it is a safe bet that any hanky-panky would become front-page news faster than you can say “Pulitzer Prize.”

So far there has been no suggestion that the NSA has done anything with disreputable motives. The administration has nothing to be ashamed of. The only scandal here is that some people favor unilateral disarmament in our struggle against the suicide bombers.

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